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No Questions, Please: A Proposal to end Cross-Examination of Police Officers

In response to the firm timelines imposed on criminal trials following the 2016 Supreme Court of Canada decision, R v Jordan, the federal government aimed to make the criminal justice system more efficient.There is no question that swifter justice is needed in our courts as cases involving multiple charges (i.e., 62% of all cases) require a median of 154 days to complete.

You have likely heard of the impending overhaul to the criminal justice system that has been proposed by the current federal government, driven by their pre-election campaign promises and the more recent debate surrounding the use of peremptory challenges that was sparked by the trial and subsequent acquittal of Gerald Stanley. This overhaul, set out in Bill C-75 (the “Bill”), has been marketed as creating a cultural shift in Canada’s justice system by making it more efficient, effective, and fair, while also reducing court delays – a laxative for the courts if you will.

Much of the discussion about the Bill has focussed on the elimination of preliminary inquiries in all but the most serious of cases as well as the complete elimination of peremptory challenges. Overlooked in this discussion is the fact that another of the Bill’s proposed changes restricts an accused’s fundamental right to challenge the evidence against him or her through the process of cross-examination. If passed, the Bill will amend the Criminal Code to allow the Crown to introduce into evidence written material from police officers regarding “routine police evidence”, thereby eliminating the need for oral testimony and circumventing cross-examination of police officers by defence counsel. Not only is this particular proposed change buried within the Bill, neither it nor its implications have been mentioned by Justice Minister Jody Wilson-Raybould in the various press releases and conferences about the Bill.

Specifically, the Bill proposes the following addition to section 657 of the Criminal Code:

657.‍01(1) In any proceedings, the court may allow routine police evidence, if otherwise admissible through testimony, to be received in evidence by affidavit or solemn declaration of a police officer and may, on its own motion or at the request of any party, require the attendance of that police officer for the purposes of examination or cross-examination, as the case may be.

Cross-examination is an essential legal tool for uncovering the truth. Limiting cross-examination, generally speaking, hampers the essential function of a trial; the search for truth. Specifically, limiting the cross-examination of police officers eliminates one of the most effective checks on police conduct and could encourage unacceptable and prohibited police practices in dealing with an accused to flourish.

Under the Bill, defence counsel will be permitted to apply to the court to require the attendance of a police officer for the purposes of cross-examination. It is likely that these applications will be made regularly. These regular applications, to advance the argument that the defence be permitted to question the very individuals who have investigated the allegation, arrested and questioned the accused, along with any related parties, and have documented the entirety of the case against the accused, are bound to further clog our courts. Consequentially, in addition to restricting the accused’s opportunity to test opposing evidence and to make full answer and defence to the charge(s) against them, this proposed change flies in the face of the stated purpose of the Bill – which is to reduce court delays and to promote efficiency within the criminal justice system.

The Jordan decision certainly obliges all participants in the criminal justice system to be more efficient so as to ensure an accused will be tried within a reasonable time, as promised under section 11(b) of the Canadian Charter of Rights and Freedoms. It does not, however, mandate that we do so by removing important procedural safeguards and evidentiary standards for the accused. The proposed amendment to section 657 of the Criminal Code as set out by the Bill erodes the fundamental right of the accused to test the evidence alleged against him or her and will only serve to unnecessarily fill limited court time and increase the likelihood of infringing an accused’s section 11(b) rights. Promptness is not the only meaningful metric in assessing whether or not our criminal justice system is in proper working order. It is important that procedural safeguards are not sacrificed in the course of striving to better Canada’s criminal justice system.

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